Snell v. Stanley

58 Ill. 31

• Court: Illinois Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinion

Mr. Justice Thornton

delivered the opinion of the Court:

Clinton W. Stanley filed a bill to foreclose a mortgage, making defendants thereto, Thomas Snell, Sarah E. Snell, Gus. Bahay, and Chris. Krouse. No answer was filed, and we are called upon to decide, as to the sufficiency of the bill upon demurrer. We have examined the record, and find no demurrer. We can not therefore determine the questions attempted to be raised by it.

The bill does not aver that Sarah is the wife of Thomas Snell, but avers that Bahay and Krouse are merely tenants of Snell, upon the lands in the bill mentioned; and they have no other interest therein.

The default of the defendants was entered, and a hearing had on bill, exhibits and oral proofs; and thereupon the court rendered a decree of foreclosure, and found that Sarah was the wife of Thomas Snell, and ordered that she and the tenants, as well as Thomas, pay the money secured by the notes and mortgage.

The notes and mortgage were originally executed to Brown by Tyler,—Brown transferred to complainant, and Tyler "sold the land to defendant Snell.

It was unquestionably error to decree against Sarah Snell. Even if she was the wife of Thomas Snell no personal decree should have been rendered against her. It was equal error to order the tenants to pay the money found to be due, together with the costs.

The decree is reversed and cause remanded.

Decree reversed.

Mr. Justice Scott took no part in this decision.